Robert G. McLusky

Robert G. McLusky is Counsel in Jackson Kelly's Environmental practice group, focusing on natural resources and environmental litigation. He practices out of the Firm’s office in Charleston, West Virginia.

Bob has been practicing environmental law at Jackson Kelly for more than three decades, so there isn’t much he hasn’t seen. He has seen the genesis and evolution of some of the most complicated environmental regulations, giving him the type of experience that can only be learned through practice. Bob’s practice focuses on energy development and infrastructure permitting  and environmental litigation in West Virginia and surrounding states. He has represented manufacturing and energy ventures in a broad range of environmental issues, including defending Clean Water Act (CWA) enforcement actions in federal court for Fortune 500 companies.

Bob’s love for his work and concern for his clients and cases extends to every minute of the day. In fact, he once was so eager to come to work, he accidentally showed up on a holiday and wondered where everyone was. This dedication has earned him numerous recognitions, including as the “Top Environmental Lawyer” in West Virginia in the 2011 edition of Chambers USA.  

He has defended Clean Water Act “fill” permits from challenges under the National Environmental Policy Act (NEPA) and the CWA, advised “linear” energy projects on NEPA and Endangered Species Act (ESA) compliance, and defended NPDES, waste, mining, quarry, and air permits. His work has also included CERCLA cleanup actions, internal investigations of environmental compliance, environmental permitting strategies, and “Brownfields” projects to rehabilitate contaminated properties. 

He has been listed in Woodward/White’s The Best Lawyers in America® since 1993, Chambers and Partners in the Natural Resources and Environmental Law practice area, and West Virginia Super Lawyers. Bob is a frequent speaker and writer and is a past president of the Energy & Mineral Law Foundation.  

At home on the West Virginia waters, Bob enjoys whitewater canoeing and paddle-boarding in his spare time.  

• Washington and Lee University School of Law (J.D., 1981)
• Colgate University (B.A., 1977)

• West Virginia (1981)

• U.S. District Court for the Southern District of West Virginia
• U.S. District Court for the Northern District of West Virginia
• U.S. District Court for the Western District of Kentucky
• U.S. District Court for the Eastern District of Kentucky
• U.S. District Court for the Southern District of Illinois
• U.S. Court of Appeals for the Fourth Circuit
• U.S. Court of Appeals for the Sixth Circuit
• U.S. Court of Appeals for the District of Columbia Circuit
• West Virginia Supreme Court of Appeals
• Supreme Court of the United States

Cases: 

• Sierra Club v. ICG Hazard, LLC, No. 13-5086 (6th Cir. 2015) (affirming application of Clean Water Act “permit shield” to discharges of selenium in citizen suit) 
• Kentuckians for the Commonwealth, et al. v. U.S. Army Corps of Engineers and Leeco, Inc., No. 13-6153 (6th Cir. 2014) (affirming § 404 fill permit in face of CWA and NEPA challenge) 
• Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009) (same) 
• Ohio Valley Environmental Coalition v. Bulen, 429 F.3d 493 (4th Cir. 2005) (reversing district court decision invalidating a “general” § 404 permit issued by Corps of Engineers) 
• Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003) (reversing district court decision holding that excess spoil generated by mining industry is not “fill material” subject to § 404 of Clean Water Act) 
• West Virginia Coal Association v. Bragg, 248 F.3d 275 (4th Cir. 2001) (holding state SMCRA authority not subject to federal court jurisdiction to enforce federally-approved state program) 
• U.S. v. Shaffer Equipment Co., 11 F.3d 450 (4th Cir. 1993) (affirming finding of misconduct by EPA in Superfund cost recovery action) 
• U.S. v. Consolidated Rail Corp., 729 F. Supp. 1461 (D. Del. 1990) (treated wood product supplier not responsible as an operator or generator under CERCLA for spilled coal tar at a processing facility even if it purchased entire output of processor) 

• Jackson Kelly PLLC (1981-Present) 

• American Bar Association 
• Energy & Mineral Law Foundation, Past President 
  • Past president
• National Mining Association

Speaking Engagements

• Speaker, "The Clean Water Act: What’s Happening, What’s Next, and Why Does It Matter To You? Part 2: Developments with Permitting Projects Under the CWA," ABA Webinar Series, Aug. 27, 2020
• Speaker, "Environmental Litigation Update," 47th Annual Mining Symposium and National Coal & Energy Conference, Charleston, West Virginia, Nov. 14, 2019
• Speaker, “’Cooperative’ Federalism and Energy Projects,” American Law Institute Continuing Legal Education, Washington, D.C., May 3, 2019
• Speaker, “The Intersection of the Natural Gas Act and Environmental/Land Use Laws,” 39th Annual Institute, Energy and Mineral Law Foundation, Nashville, Tennessee, June 19, 2018

Writings and Publications 

• “The Intersection of the Natural Gas Act and Environmental/Land Use Laws,” 39th Annual Energy & Mineral Law Institute, Nashville (June 2018)
• “Conventional and Unconventional Warfare: The Increasing Criminalization of Both Clearly Wrong and Seemingly Ordinary Activities in the Mineral Industries,” 36th Annual Energy & Mineral Law Institute (March 2015) 
• “Mayfly Mayday: The West Virginia Legislature Attempts to Redefine Compliance with the Narrative Water Quality Standards Through Senate Bill 562,” 115 W.Va. L. Rev. 1031 (2013) 
• “Use of Conductivity to Define Compliance with State Narrative Water Quality Standards,” Publication pending in 32nd Annual Energy & Mineral Law Institute 
• “Selenium Issues in the Coal Industry,” 30th Annual Energy & Mineral Law Institute (May 2009) 
• “Civil Litigation under the Clean Water Act,” 27th Annual Energy & Mineral Law Institute (May 2007) 
• “Valley Fills and the Clean Water Act: The Strange Confluence of the Clean Water Act and SMCRA in Bragg v. Robertson,” 20th Annual Energy & Mineral Law Institute (May 2000) 
• “Recent Permitting and Enforcement Measures to Combat Acid Mine Drainage - Are They in Contravention of SMCRA?,” 17th Annual Eastern Mineral Law Institute (April 1996) 
• “Citizens’ Suits Under Selected Environmental Statutes,” presented as part of the West Virginia University College of Law Continuing Legal Education Series (Feb. 1990) 
• “West Virginia Regulation of Coal Mine Subsidence,” Eastern Mineral Law Foundation Special Institute (Sept. 1989) 
• “Surface Mining Permit Applicant Violator System,” presented to the West Virginia Mining and Reclamation Association (1989) 

• Ranked in Chambers USA, America's Leading Lawyers for Business in the area of Environment Law in West Virginia, (2021, 2023-2024)
• West Virginia Super Lawyers® for Environmental Law (2013-2024) 
• The Best Lawyers in America® for Energy Law, Litigation - Environmental, Mining Law and Natural Resources Law (1993-2025) 
• EMLF John L. McClaugherty Award (2015) 
• U.S. News - Best Lawyers® Law Firm of the Year - in Mining Law (2015) 
• Listed in the Construction, Real Estate & Environmental Section of Super Lawyers® Business Edition for Environmental (2013-2015) 
• Chambers USA, America’s Leading Lawyers for Business in the area of Natural Resources: Environmental Law in West Virginia (2007-2020) 
• “Lawyer of the Year” for Mining Law – West Virginia’s Best Lawyers (2013) 
• “Lawyer of the Year” for Litigation-Environmental – West Virginia’s Best Lawyers (2012) 
• “Lawyer of the Year” for Energy Law – West Virginia’s Best Lawyers (2011) 
• Rated by Super Lawyers® since 2007

• Appellate
• Environmental
• Renewable Energy

• Coal
• Energy
• Manufacturing
• Oil & Gas
• Mining

• Jackson Kelly Again Well Represented in Best Lawyers Rankings
• Jackson Kelly Well Represented in 2024 Chambers USA Guide
• Twenty Jackson Kelly Attorneys in West Virginia Named 2024 Super Lawyers and Rising Stars
• Regional Endangered Species Issues
• Ninth Circuit Rules Berkeley Gas Ban is Preempted by Federal Law but Acknowledges Limited Scope of Ruling
• Solar Facilities to Face NIMBY Issues in West Virginia
• Supreme Court Takes Away EPA’s Toys
• Fourth Circuit Vacates but does not Reverse District Court Decision Barring Columbia’s Use of Natural Gas Act Eminent Domain Against Commonwealth of Maryland
• Supreme Court Hears Argument on Scope of EPA’s Authority Over Power Plant Emissions
• Fourth Circuit Follows Lead of Sixth Circuit: Citizen Groups Cannot Use SMCRA's Citizen Suit to Sue for Discharges Subject to Clean Water Act "Permit Shield"
• Corps of Engineers Rejects Some State Certification Conditions on Nationwide § 404 Permits in WV and Ohio
• Federal Court Denies WVDEP's Motion to Dismiss Claim that State Failed to Notify OSM of a "Significant Event" in the State's SMCRA Bonding Program: OVEC v. WVDEP (SDWV)
• Federal Court in NY Vacates Solicitor Opinion Restricting Scope of Migratory Bird Treaty Act to Actions Directed at Birds
• U.S. Supreme Court Allows Pipeline to Cross Appalachian Trail
• U.S. Supreme Court Allows Pipeline to Cross Appalachian Trail
• Federal Court Rejects Use of Virginia County Flood Ordinance to Limit Natural Gas Pipeline Construction
• Federal Court Rejects Use of Virginia County Flood Ordinance to Limit Natural Gas Pipeline Construction
• West Virginia Enhances Penalties for Trespass and Damages to Critical Infrastructure
• West Virginia Enhances Penalties for Trespass and Damages to Critical Infrastructure
• Anti Mining Group Urges Fourth Circuit to Override Clean Water Act Permit Shield
• U.S. Fish and Wildlife Service Proposes Critical Habitat for Two Central Appalachian Crayfish
• Ohio Appeals Court Rules that State §401 Waiver Divested it of All Enforcement Authority Over Rover Pipeline
• Anti Mining Group Appeals Adverse Clean Water Act “Permit Shield” Ruling
• Attorneys Huffman and McLusky to Speak at 47th Annual West Virginia Mining Symposium
• Third Circuit Declines to Reconsider Eminent Domain Case: Allows States to Block Pipelines
• West Virginia Supreme Court Slams Class Certification Order from Trial Court Judge Who Stood to Benefit from the Class Action
• Two Sets of Climate Books? Is New York’s Claim Against Exxon Mobil Heating Up or Just a Lot of Hot Air?
• Reginald Comes to the Keystone State?
• Court Rejects Claims that Valley Fill Discharges are Unpermitted Discharges: Relies on Broad Application of “Permit Shield”
• Circuit Court Bars Use of Natural Gas Act Condemnation Authority Against States by Pipeline Developers in Federal Courts
• Jackson Kelly PLLC Attorneys Recognized in The Best Lawyers in America® 2020
• Challenges continue to Trump directive prohibiting EPA grant recipients from participation in EPA advisory committees
• U.S. Supreme Court Removes One Hurdle in Takings Cases Against State and Local Governments
• Federal Court Smacks Down County Board of Education over Opposition to Rockwool Plant in WV
• NRDC Claims WVDEP's Underground Injection Program for the Oil and Gas Industry is Deficient
• Chambers USA Recognizes Jackson Kelly Attorneys and Practice Groups
• Rockwool Plant Developer in WV Sues School Board for Threatening to Condemn Project Property
• The Green New Deal Meets Physics
• Courts Reject Challenges to Directive Prohibiting EPA Grant Recipients from Participation on Federal Advisory Committees
• Coal Ash Rule: Rule Opponents Seek Immediate Closure of Existing Unlined Facilities
• U.S. Supreme Court Allows Kids' Climate Trial to Proceed
• EPA Proposes to Reconsider New Source Performance Standards for Oil & Gas Emissions
• EPA Proposes to Reconsider New Source Performance Standards for Oil & Gas Emissions
• Jackson Kelly PLLC Attorneys Recognized in The Best Lawyers in America© 2019
• EPA Offices at Odds Over Response to FERC Greenhouse Gas Inquiry
• EPA Offices at Odds Over Response to FERC Greenhouse Gas Inquiry
• EPA Offices at Odds Over Response to FERC Greenhouse Gas Inquiry
• Oil & Gas Development Wins Significant Case in Third Circuit
• DOE to Order Procurement of Power from Coal and Nuclear Facilities for 2 Years to Prevent Immediate Shutdowns
• EPA to Reject Claims of Maryland and Delaware that Upwind Power Plants Have Inadequate NOx Controls
• Chambers USA Recognizes Jackson Kelly Attorneys and Practice Groups
• Gas Producer Sues WVDEP for Declaration that “Flat Rate Statute” Unconstitutionally Impairs Flat Rate Gas Leases
• Jackson Kelly Attorneys Recognized as WV Super Lawyers and Rising Stars
• West Virginia Supreme Court Dissolves Water Replacement Obligation of Mine Operator
• Fayette County, WV Ordinance Banning Oil & Gas Waste Disposal Met with Preemptive Challenge By Gas Industry
• Sierra Club Sues Gas Industry Claiming Waste Injection is Causing Earthquakes in Oklahoma and Kansas
• Fish and Wildlife Service Puts Two Crayfish on Threatened and Endangered Species List. Action Will Affect Projects in the Guyandotte Rivershed of West Virginia and the Big Sandy Watershed of Virginia, Kentucky and West Virginia.
• Court Allows Pipeline Opponents to Challenge Clean Water Act Permits Directly in Circuit Courts of Appeal
• EPA’s Science Advisory Board Critiques EPA Assessment of Hydrofracking Impacts on Water Resources
• Sierra Club Expands War on Gas in Challenge to Air Permit for Gas Plant: Claims Emissions from Gas Supply Pipeline and Associated Compression Should be Included in Analyses
• ExxonMobil Sued by Climate Activists for Failure to Account for Climate Risks to Oil Storage Facility in Massachusetts
• OIL AND GAS INDUSTRY THINKING LONG TERM; SEEKS 50-YEAR “TAKE” PERMIT UNDER ENDANGERED SPECIES ACT
• Monkey Wrenches on the Way: Anti-Pipeline Group from the Midwest Wants in on the Appalachian Action
• Virginia Court Allows ACP Pipeline to Conduct Surveys Without Landowner Permission
• EPA Withdraws 2016 Information Request on Methane Emissions from the Oil and Gas Industry
• Maryland General Assembly Bans Fracking
• New Jersey Town Claims it Was HooDooed by Pipeline Company
• Federal court in Pennsylvania Invalidates Township Ordinance Prohibiting Oil and Gas Waste Disposal
• Delaware Riverkeeper Asks Third Circuit to Expedite Review of Corps-Issued Permit for Pipeline
• Virginia Supreme Court Largely Affirms Right of Pipeline to Conduct Property Surveys and Examinations without Landowner Approval
• Third Circuit Rejects Challenge to Corps of Engineers’ Permit for Pipeline
• Sierra Club Links Up with Libertarian Landowners in Continued Opposition to Gas Development
• Thirty-Three Jackson Kelly Attorneys Named to 2017 West Virginia Super Lawyers or Rising Stars Lists
• Chambers USA Recognizes Jackson Kelly Attorneys and Practice Groups
• PADEP ANNOUNCES FINAL TECHNICAL GUIDANCE DOCUMENT FOR COORDINATING IMMEDIATE RESPONSES AND FINAL REMEDIATION OF RELEASES OF REGULATED SUBSTANCES”
• PENNSYLVANIA DEP RELEASES FOURTH IN SERIES OF REPORTS ON EFFECTS OF SURFACE SUBSIDENCE FROM UNDERGROUND MINING
• Sierra Club Declares Clean Water Act War on the Coal Industry By Suing EPA in Kentucky and West Virginia
• Ohio Appeals Court Declines to Rule that Preclusive Effect of Oil & Gas Program Extends to Storage of Debris Used for Well Access Road
• WV GOVERNOR SIGNS LEGISLATION ALLOWING WVDEP TO APPROVE WELL PAD PERMIT TRANSFERS
• West Virginia Supreme Court Hears FOIA Case Over WVU Mining Study Records
• Federal Court in Pennsylvania Declines to Require Accumulation of Emissions from Non-Contiguous Compressor Stations for CAA Permitting
• EPA Moves to Dismiss Sierra Club Efforts to Rescind State NPDES Programs
• Board Affirms Certification Revocation for Water Lab in WV
• 2015 WV Legislature Rewrites Aboveground Storage Tank Act
• The “Other” Murray Energy Clean Air Act Challenge
• Court Compels EPA to Respond to Murray Energy’s Discovery Requests in WV Clean Air Act Case
• EPA Seeks Order From 4th Circuit to Prohibit Discovery by Murray Energy
• Mingo Logan Appeals Adverse District Court Decision on § 404 Permit “Veto” - Again
• EPA Seeks Order From 4th Circuit to Prohibit Discovery by Murray Energy: UPDATE 4th Circuit Denies Relief to EPA
• OSM Releases Proposed Stream Protection Rule
• Sierra Club Moves Efforts to Rescind WV and KY State NPDES Programs to Fourth and Sixth Circuits
• EPA Seeks Order From 4th Circuit to Prohibit Discovery by Murray Energy-UPDATE: EPA Needs More Time to Locate and Review Documents
• U.S. Fish and Wildlife Service Takes Action on Petitions to List Kentucky Arrow Darter and Cumberland Arrow Darter as Endangered or Threatened Species
• EPA Acts on Petition to Extend Toxic Release Inventory Reporting to Oil and Gas Extraction Sector
• Pipeline Opponents Urging FERC to Consolidate NEPA Review for Multiple Pipeline Projects
• Sierra Club Threatens RCRA Citizen Suit Against Oil & Gas Operators Over Earthquakes in Oklahoma and Southern Kansas
• EPA Tries to Block Murray Energy's Deposition of Gina McCarthy
• WVDEP Provides Guidance to Mine Operators on Cutting Timber in Northern Long-Eared Bat Territory
• Fayette County, WV Ordinance Banning Oil & Gas Waste Disposal Met with Preemptive Challenge By Gas Industry
• WV Surface Mine Board Holds WVDEP Cannot Charge Surface Mine Permit Transfer Fees for Upstream Changes in Ownership and Control: Justice Companies Not Responsible for Fee in Stock Acquisition
• U.S. Supreme Court Stays Clean Power Plan Rule for Existing Coal Plants
• Federal Court In WV Voids Severance Deed Waiver Because Longwall Mining Not Contemplated In 1902
• States and Developers File Amicus Briefs Supporting Review of Jurisdictional Determinations by Corps of Engineers
• Delaware Riverkeeper Sues FERC Claiming Reliance on Regulatory Fees Creates Impermissible Temptation to Bias
• EPA Proposes to Expand its Accidental Release and Risk Management Program Rules under Section 112(r) of the Clean Air Act
• EPA Proposes to Add Clarksburg, WV Site to Superfund National Priorities List
• Fish and Wildlife Service Puts Two Crayfish on Threatened and Endangered Species List. Action Will Affect Projects in the Guyandotte Rivershed of West Virginia and the Big Sandy Watershed of Virginia, Kentucky and West Virginia.
• On Remand, EPA Determines Cost of Mercury Air Rule was Reasonable
• Oral Arguments in Clean Power Plan Challenge Moved to September
• Murray Energy Seeks Review of Additional Documents in Jobs Lawsuit Against EPA
• Tenth Circuit Vacates District Court NEPA Rulings on Mine Permit Modifications, but Only After Finding Appeals Were Moot
• Court Allows Pipeline Opponents to Challenge Clean Water Act Permits Directly in Circuit Courts of Appeal
• EPA’s Science Advisory Board Critiques EPA Assessment of Hydrofracking Impacts on Water Resources
• Sierra Club Expands War on Gas in Challenge to Air Permit for Gas Plant: Claims Emissions from Gas Supply Pipeline and Associated Compression Should be Included in Analyses
• West Virginia Environmental Quality Board Swings and … Bunts? Rules that WVDEP Properly Modeled River Zones for Characterizing Aboveground Storage Tanks
• ExxonMobil Sued by Climate Activists for Failure to Account for Climate Risks to Oil Storage Facility in Massachusetts
• Mining Doesn’t Cause Flooding? A Headline You’ll Never See in the Charleston Gazette
• Federal Judge Rules That EPA has Failed to Conduct Required Studies of Effects of its Clean Air Act Enforcement and Implementation on Employment
• EPA Submits Proposed Jobs Study Schedule in Response to Order in Murray Energy Clean Air Act Case in WV
• Groups Seek Order Requiring EPA to Regulate Ammonia Emissions from Animal Feeding (and Other) Operations
• Groups Seek Order Requiring EPA to Regulate Ammonia Emissions from Animal Feeding (and Other) Operations
• IT’S THE GIVING SEASON: OBAMA ADMINISTRATION LEAVES PARTING GIFTS TO ENERGY AND MANUFACTURING INDUSTRIES
• Monkey Wrenches on the Way: Anti-Pipeline Group from the Midwest Wants in on the Appalachian Action
• How the Congressional Review Act (CRA) Allows Congress to Undo Executive Branch Regulations
• Outgoing FERC Commissioner Urges Commission to Broaden Analysis of Need for and Effect of Pipelines: Effect May Be to Increase Direct Action by Pipeline Opponents
• EPA Withdraws 2016 Information Request on Methane Emissions from the Oil and Gas Industry
• Maryland General Assembly Bans Fracking
• Federal court in Pennsylvania Invalidates Township Ordinance Prohibiting Oil and Gas Waste Disposal
• Federal Court in Oregon Rules that EPA Approval of State-Issued TMDLs Can Be an Affirmative Action Triggering Section 7 Consultation Under the Endangered Species Act
• Delaware Riverkeeper Asks Third Circuit to Expedite Review of Corps-Issued Permit for Pipeline
• UTILITY GROUPS ASK EPA TO MODIFY COAL ASH RULE AND TO EXTEND COMPLIANCE DEADLINES
• Fourth Circuit Refuses to Order EPA to Conduct Coal Jobs Analysis: When “Shall” Means “Eh, Maybe”
• Virginia Supreme Court Largely Affirms Right of Pipeline to Conduct Property Surveys and Examinations without Landowner Approval
• Third Circuit Rejects Challenge to Corps of Engineers’ Permit for Pipeline
• Sierra Club Links Up with Libertarian Landowners in Continued Opposition to Gas Development
• West Virginia Supreme Court Emphasizes Importance of DEP’s Role in SMCRA Citizen Suits
• Trump’s EPA Proposes to Roll Back Clean Power Plan
• Sierra Club Declares Clean Water Act War on the Coal Industry By Suing EPA in Kentucky and West Virginia
• PENNSYLVANIA DEP RELEASES FOURTH IN SERIES OF REPORTS ON EFFECTS OF SURFACE SUBSIDENCE FROM UNDERGROUND MINING
• EPA Moves to Dismiss Sierra Club Efforts to Rescind State NPDES Programs
• Board Affirms Certification Revocation for Water Lab in WV
• Jackson Kelly Attorneys to Present at EMLF 36th Annual Institute
• EPA Seeks Order From 4th Circuit to Prohibit Discovery by Murray Energy
• Mingo Logan Appeals Adverse District Court Decision on § 404 Permit “Veto” - Again
• EPA Seeks Order From 4th Circuit to Prohibit Discovery by Murray Energy: UPDATE 4th Circuit Denies Relief to EPA
• Sierra Club Moves Efforts to Rescind WV and KY State NPDES Programs to Fourth and Sixth Circuits
• EPA Seeks Order From 4th Circuit to Prohibit Discovery by Murray Energy-UPDATE: EPA Needs More Time to Locate and Review Documents
• U.S. Fish and Wildlife Service Takes Action on Petitions to List Kentucky Arrow Darter and Cumberland Arrow Darter as Endangered or Threatened Species
• EPA Tries to Block Murray Energy's Deposition of Gina McCarthy
• U.S. Supreme Court Stays Clean Power Plan Rule for Existing Coal Plants
• Fish and Wildlife Service Puts Two Crayfish on Threatened and Endangered Species List. Action Will Affect Projects in the Guyandotte Rivershed of West Virginia and the Big Sandy Watershed of Virginia, Kentucky and West Virginia.
• Oral Arguments in Clean Power Plan Challenge Moved to September
• Tenth Circuit Vacates District Court NEPA Rulings on Mine Permit Modifications, but Only After Finding Appeals Were Moot
• IT’S THE GIVING SEASON: OBAMA ADMINISTRATION LEAVES PARTING GIFTS FOR THE COAL INDUSTRY
• How the Congressional Review Act (CRA) Allows Congress to Undo Executive Branch Regulations